Contributors

One of the reactions of employers to difficult economic times is often to "restructure" - to reduce the number of positions in the company and retrench the newly surplus staff. Ivan Israelstam explores the legal requirements and pitfalls to avoid.

South African labour law - often criticised for restricting recruitment because employers believe that they cannot dismiss an employee. Whereas, as Ivan Israelstam points out, investing the time and money into good quality training on labour law for management, will pay off many times over in costs saved from adverse CCMA and Bargaining Council decisions.

This week, Ivan Israelstam sets out what the term "dereliction of duty" means. He explains why it is important for management to use the term correctly, neither to come on too strong against an employee, when other factors could explain events, nor to be too soft when the allegation of dereliction of duty would be correct.

Retrenchment exercises are defined as dismissals for operational requirements, and may be contemplated by employers for economic, structural, or technological reasons. During the difficult economic times of the COVID-19 pandemic, employers may be contemplating retrenchment of employees. This week Ivan Israelstam lays out the requirements for large scale retrenchments - with the definition of constitutes large scale.  

This week Ivan Israelstam explains how the Labour Relations Act (LRA) affects labour brokers. The LRA refers to a Temporary Employment Service (TES) - that is a labour broker. Therefore, Ivan explains exactly how this can affect the labour broker adversely, when they try to dismiss one of their employees. 

Employees do sometimes lay frivolous and vexatious claims against employers at the CCMA.  However, employees who do so may be ordered to pay the employer's legal costs. Even so, the employer should not give employees easy claims by failing to behave legally and responsively; and should definitely not underestimate the importance of preparing a response - even if the employees claims are spurious.

Ivan Israelstam illustrates with examples, why it is necessary for employers to ensure that incidents requiring disciplinary hearings, are fully investigated; and the evidence is collated and prepared ready for presentation. Failure to complete the investigation, the preparation, and the presentation steps is highly likely to lead to dismissed employees being reinstated by the Commission for Conciliation Mediation and Arbitration. 

What is double jeopardy, how does it arise, and what are the consequences for employers? This week Ivan Israelstam uses cases to explain what double jeopardy is, and how employers get themselves into some very expensive consequences, when dismissing employees in these circumstances.

The Labour Court has defined 3 important characteristics of  incompatibility at the workplace. This week Ivan Israelstam expands upon each of the 3 characteristics, and explains what should be taken into account before dismissing an employee, and how incompatibility relates to incapacity.  

This week Ivan Israelstam addresses questions about: the loyalty that an employer can legitimately expect from employees; what employees' rights are, for example to join a union; what a conflict of interest is, and how an employer should deal with conflict of interest.

 Dismissing employees who have been arrested can be dangerous. That is the view of Ivan Israelstam, who this week explains why he makes that statement. He provides examples from the Commission for Conciliation Mediation and Abitration (CCMA), bargaining council, Labour Court and Labour Appeal Court, so that employers can see exactly how they should interpret their obligations.

What is the value that employees potentially add to a business, or organisation? What should employers do in order to maximise that value? What are the potential financial implications if employers do not follow the guidelines that Ivan Israelstam lays out? Ivan explains further. 

Absent employees do constitute a problem for employers, particularly is the absence is frequently repeated. The employer is required, however, to ensure that the rights of absent employees are adhered to - before dismissing them from the company. Ivan Israelstam explains that the courts have repeatedly confirmed - an employee cannot dismiss themselves. So before taking the decision to dismiss an employee, it is necessary for employers to do everything possible to make contact with the absent employee, and to advise them of their rights to a hearing. 

This week Ivan Israelstam expresses his interpretation of Code of Good Conduct: Dismissal; that is: Schedule 8 of the Labour Relations Act (LRA). While cross examination is a constitutional right afforded to accused persons in courts of law, and extended to bargaining council and Commission for the Conciliation Mediation and Arbitration (CCMA) arbitrations, it is not clear whether this right extends to disciplinary hearings. Ivan explains his view of whether the Code provides for cross examination at disciplinary hearings.  

Ivan Israelstam quotes from two cases of the same employer, with similar facts, but with different outcomes. Read carefully the facts that Ivan lays out to see how you would have acted in your company. 

Can a foreign company operating in South Africa claim that the Head Office dismissed the employee, and so South African labour law does not apply? This is just one of the questions addressed by Ivan Israelstam regarding foreign employer companies; and South Africans working in foreign countries - whether for South African employers, or for foreign employers. 

This week Ivan Israelstam explains exactly why employers who have disciplinary procedures - and put those disciplinary procedures in the employee's contract - need to make absolutely sure that they follow exactly the procedures that have been set out. The Labour Court will take a dim view of employers who simply make minimal effort to ensure that the procedures are followed.

How should arbitrators come to their decision in matters put before them at the Commission for Conciliation Mediation and Arbitration (CCMA). What factors should they take into account? Are the arbitrators obliged to explain their decision, and provide reasons for their decision? Does PAJA - the Promotion of Administrative Justice Act cover matters at the CCMA? This week Ivan Israelstam covers all these questions.

"I'll give you a warning". That is something heard by employees, when a supervisor or manager makes the statement as a threat because they are frustrated with the behaviour or non-compliance of an employee. This week Ivan Israelstam explains exactly how warnings should be viewed, and when different levels of warning are appropriate. 

This week Ivan Israelstam explains what these terms of the Labour Relations Act section 213 mean - economic, technological, structural or similar needs of the employer.